Amanda Lowry v. Nicole M. Irish ( 2020 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
AMANDA LOWRY, )
)
Petitioner, )
)
v. ) C.A. No. 2019-0269-SG
)
NICOLE M. IRISH, ROCKLAN L. )
REYNOLDS and RANDAL L. )
REYNOLDS, )
)
Respondents. )
MEMORANDUM OPINION
Date Submitted: June 10, 2020
Date Decided: September 18, 2020
Stephen W. Spence and Stephen A. Spence, of BAIRD MANDALAS
BROCKSTEDT, LLC, Lewes, Delaware, Attorneys for Petitioner.
Eugene H. Bayard, R. Eric Hacker, and Ross C. Karsnitz, of MORRIS JAMES LLP,
Georgetown, Delaware, Attorneys for Respondents.
GLASSCOCK, Vice Chancellor
This matter turns on the ability of co-tenants to waive the statutory—
originally common-law—right to partition an estate in real property. The Petitioner
seeks partition of a tenancy in common, the Respondents interpose a contractual
waiver of the right, and the matter is before me on the Petitioner’s Motion for
Judgement on the Pleadings.
The right to partition is based on the law’s traditional abhorrence for the
restraints on alienation implied by co-tenancy, and by the economic inefficiencies
inherent in requiring unanimity concerning the disposition of any property. The
right to partition real property is said to be absolute—a descriptor that then-Vice
Chancellor Strine termed “iron[ic]” in light of cotenants’ established, if limited,
ability to waive the right. 1 It is better, I think, to view partition as a right inherent in
all real property, jointly owned. In that sense, it is absolute. The co-owners
themselves, however, as free actors, may bind themselves by contract to eschew
exercise of the right. Looked at in that way, controversies over the ability to waive
the “absolute” right of partition are better seen as disputes over the validity of
contractual obligations to refrain from exercise, and whether such obligations may
be specifically enforced. Our case-law indicates that contracts requiring the parties
to eschew exercise of partition are enforceable to the extent they are clear, present
1
Libeau v. Fox, 880 A.2d 1049, 1056 (Del. Ch. 2005), aff’d in pertinent part, 892 A.2d 1068 (Del.
2006).
1
some reasonable mechanism for sale as an alternative to partition, and where the
restriction on partition is reasonable in duration. 2 In such a situation, a petitioner in
partition, having accepted the benefits of the contract in which she waived partition,
is estopped from invoking the right to partition inherent in the co-tenancy.
The instant action involves the Workman farm, roughly 140 acres of farmland
near Milton (the “Property”). The contract (the “Agreement”) was between siblings,
who had then just obtained the Property from their parents by gift and purchase. The
siblings, Willard Workman and Sandra Reynolds, agreed that each “waives any and
all right which he may otherwise have . . . to seek a partition of the Property . . .
without the prior written consent of the other parties.”3 This promise was,
specifically, binding on “third party purchasers,” and the Agreement generally
bound “heirs, personal representatives, successors and assigns” to its terms. 4 The
Agreement was entered for consideration; the contractual sale mechanism (which
involves an appraisal procedure and right of first refusal) was reasonable, and the
Agreement is thus enforceable if the duration of the restriction of partition is
reasonable. That requirement—that a restraint on the partition right is enforceable
only if its duration is reasonably limited—is the crucial issue here.
2
Id. at 1064.
3
Defs.’ Verified Answer, Defenses and Counterclaim (“Answer and Countercl.”), Ex. A, Co-
Ownership Agreement (“Agreement”) § 4.01(b), Dkt. No. 19.
4
Id. §§ 4.01(g), 7.11.
2
Restraints on alienation of land are disfavored in law because they restrict the
owners’ ability to put the property to its highest and best use. As this Court has
pointed out, the social interest in highest-value use has diminished over time. 5 In
fact, at the time of the Agreement (and thereafter), Delaware had rejected the
common-law Rule Against Perpetuities for trusts, and the Property could have been
placed in trust, avoiding co-tenancy, for 110 years. 6 Nonetheless, restrictions on the
free use of property continue to be economically inefficient, and the prospect of co-
tenancies entailed forever without the prospect for value-maximizing exits, with the
co-tenants locked together down the generations like scorpions in a bottle, is one the
law will not countenance. Accordingly, waivers by co-tenants of partition rights
must be limited to a reasonable duration, or they are unenforceable.
The need for such limitations is problematic, because, to be effective, a
restraint on partition must apply to assigns, and cannot simply be limited to the
signatory parties themselves. A moment’s reflection reveals that such must be the
case; otherwise, an agreement not to partition could be avoided simply by
transferring the interest to a third party, who—not himself bound—could
immediately seek a partition of the estate. Obviously, then, a provision binding
third-party purchasers—as per the Agreement here—is not itself fatal to the
5
Libeau, 880 A.2d at 1058.
6
See 25 Del. C. § 503(a), (b).
3
enforceability of the waiver. However, a contract to waive partition without
reasonable temporal limitation is unenforceable for the reasons discussed above. It
is with these principles in mind that I address the instant Motion for Judgement on
the Pleadings, by which the Petitioner seeks an Order of Partition of the Property.
In this case, both parties to the Agreement have died. The petitioner is
Amanda Lowry, daughter of Willard Workman. She owns an undivided 50% of the
Property, which she received from Workman by will. Lowry seeks partition of the
Property under the statute,7 which would presumably result in her owning half of the
acreage, solely. She contends she is free of the contractual waiver of partition and
sale procedure provisions of the Agreement, because those provisions are
unenforceable as unreasonable restraints on alienation (or because the Agreement
otherwise runs afoul of the Rule against Perpetuities).
By its terms, the Agreement binds heirs and assigns. It terminates only when
title is merged or where “all interests . . . are sold.” 8 As such, I find, if enforced as
written, the Agreement would be potentially perpetual and work an unreasonable
restraint on alienation. Accordingly, the partition waiver is unenforceable, and the
Petitioner is entitled to a partition. I amplify my reasoning, below.
7
25 Del. C. § 721.
8
Agreement § 1.01.
4
I. BACKGROUND 9
At issue in this Petition is the Property, a nearly 140-acre parcel located just
west of Milton, Delaware, fronting a major public road (Delaware Rt. 16) on the
north and Lavinia Pond on the south. 10 Petitioner Amanda Lowry is a North
Carolina resident who owns an “undivided one-half interest” in the Property.11
Respondents Nicole Irish, Rocklan Reynolds, and Randal Reynolds, collectively,
own the other one-half interest in the Property. 12 Both parties came into their
interests in the Property through inheritance. 13
The Property was originally three separate parcels.14 The parties’
grandparents, Willard H. Workman and Louise E. Workman (the “Grandparents”),
acquired the three parcels in the 1950’s and merged them into the Property. 15 On
9
The facts, except where otherwise noted, are drawn from the well-pled allegations of the
Petitioner’s Verified Petition for Partition (“Petition”), Dkt. No. 1, and exhibits or documents
incorporated therein. In this real property matter, I take judicial notice of several publicly available
property records that are included with the parties’ papers. Sunrise Ventures, LLC v. Rehoboth
Canal Ventures, LLC, 2010 WL 363845, *10 n.58 (Del. Ch. Jan. 27, 2010) (taking judicial notice
of publicly available property records), aff’d, 7 A.3d 485 (Del. 2010). The Co-Ownership
Agreement at the heart of this dispute was not attached to the Petition; however, the Respondents
included it with their answer and counterclaim, and I consider it here.
10
Petition ¶ 5. The Property consists “of approximately 138.92 acres of land; otherwise identified
as Sussex County Tax Map Number 2-35-14.00-83.01; which is more particularly described in
deeds filed in the Office of the Recorder of Deeds, Georgetown, Sussex County, Delaware, in 1)
Deed Book 5041, Page 211; and 2) Deed Book 4800, Page 98.” Id. Lavinia Pond is sometimes
denominated as “Lavina” Pond.
11
Id. ¶ 1.
12
Id. ¶ 2.
13
Id. ¶ 6.
14
Pet’r’s Opening Br. in Support of Her Mot. for J. on the Pleadings (“Pet’r’s Opening Br.”), Exs.
A, B, C, Dkt. No. 22.
15
Id.
5
January 6, 1995, the Grandparents conveyed the Property to their two children,
Willard A. Workman and Sandra E. Reynolds.16 Workman’s half interest ultimately
passed to the Petitioner. 17 Reynolds’ half-interest ultimately passed to the
Respondents. 18
On February 20, 1995, shortly after receiving their interests in the Property
from the Grandparents, Workman and Reynolds entered the Co-Ownership
Agreement to govern their ownership and use of the property. 19 The Agreement was
not recorded. Workman and Reynolds were the only signatories to the Agreement—
it was not signed by any of the parties in this Action. The Agreement provided
general provisions, such as capital contributions, purposes in entering the
Agreement, title, payments, rent, and management. 20 The Agreement’s “Term” was
as follows: “This Agreement shall take effect upon execution and shall terminate
when all interests in the Property are sold or merged.”21
Article IV of the Agreement, “Sale or Transfer of Interests in the Property,”
imposes various limitations on sales and transfers. Section 4.01(a) prohibits a sale
16
Id., Ex. D. At the same time, the Grandparents carved out an approximately two-acre parcel
(the “House Parcel”) from the Property and conveyed it to Grandparent Louise E. Workman, who
sold it to Respondent Randal Reynolds in July 2017. Id., Ex. F. Petitioner is not seeking a partition
of the House Parcel.
17
Answer and Countercl., Ex. B, Dkt. No. 19; Petition, Ex. A.
18
Pet’r’s Opening Br., Exs. G, H.
19
See n.3 supra.
20
Agreement, Art. I–III.
21
Id. § 1.01.
6
or transfer without written consent: “Except as expressly provided in this
Agreement, no party hereto shall sell, transfer, assign, pledge, lease or otherwise
dispose of or encumber any interest in the Property without the written consent of
the other parties.”22 Section 4.01(b) expressly prohibits a partition action absent
consent:
Each of the parties acknowledges that in view of the plan of operating
and using the Property as a residential dwelling unit, it would be
prejudicial to the interests of the parties if any party were to seek a
partition of the Property by court action. Accordingly, in consideration
for this Agreement, each of the parties hereby waives any and all right
which he may otherwise have by law or equity to seek a partition of the
Property by court action, without the prior written consent of the other
parties.23
In the case that “any party desires to sell his interest,” the Agreement provides a sale
process in §§ 4.01(c)–(i), including a right of first refusal, matching rights, and
recourse to a forced sale. 24 If a third party acquires an interest, “[t]he third party
purchaser shall be subject to all terms and conditions of th[e] Agreement . . . .” 25
The Agreement also contains general provisions. Several are pertinent here.
First, the parties agreed to a method for determining “Fair Market Value.” 26 Second,
they provided for the survival of the Agreement past closing.27 Third, they included
22
Id. § 4.01(a).
23
Id. § 4.01(b).
24
Id. §§ 4.01(c)–(h).
25
Id. § 4.01(g).
26
Id. § 7.02.
27
Id. § 7.06.
7
a severability clause.28 And, finally, the Agreement provides, “[t]his Agreement
shall be binding upon and inure to the benefit of the individual parties hereto, their
heirs, personal representatives, successors, and assigns.”29
The Petitioner filed her petition for partition (the “Petition”) on April 9,
2019. 30 The Respondents answered the petition and filed counterclaims seeking to
enforce the Agreement on July 3, 2019.31 On July 22, 2019, the Petitioner answered
the counterclaims and moved for a judgment on the pleadings. 32 I heard argument
on June 8, 2020, and I asked for a supplemental statement from the parties, which
they provided on June 20, 2020. 33 That supplemental statement concerned the fact
that several transactions by deed have occurred concerning the property, none by
arms-length sale, resulting in the ownership of the property, now, by the current
parties to this litigation, the children of the signatories of the agreement. In the
supplemental statement, the parties confirmed that “the conveyances of interests in
the Property of the type that have occurred since each of the Property interests passed
by testamentary document do not constitute sales of interests in the Property under
the Co-Ownership Agreement, and that no party contends the Co-Ownership
28
Id. § 7.09.
29
Id. § 7.11.
30
Petition.
31
Answer and Countercl.
32
Pet’r’s Answer to Resp’ts’ Verified Countercl., Dkt. No. 20; Pet’r’s Mot. for J. on the Pleadings,
Dkt. 21.
33
Letter, Dkt. No. 40.
8
Agreement has been terminated under Section 1.01.”34 Because that issue is thereby
not before me, I will not consider the transactions by deed, and will consider the
current interests as though acquired by will of the signatories. Upon receipt of the
parties’ supplemental statement, I considered the matter fully submitted.
II. ANALYSIS
A motion for judgment on the pleadings under Chancery Court Rule 12(c)
may be granted only where no material issue of fact exists and the movant is entitled
to judgment as a matter of law. 35 “When considering a Rule 12(c) motion, the court
must assume the truthfulness of all well-pled allegations of fact in the complaint and
draw all reasonable inferences in favor of the” non-moving party. 36 Further, “[o]n a
Rule 12(c) motion, the Court may consider documents integral to the pleadings,
including documents incorporated by reference and exhibits attached to the
pleadings, and facts subject to judicial notice.” 37
A. Statutory Right to Partition
Under 25 Del. C. § 721, Delaware provides tenants in common with a
statutory right to partition: “When any 2 or more persons hold lands and tenements
within this State as joint tenants or tenants in common . . . any 1 or more of
34
Id.
35
W. Coast Opportunity Fund, LLC v. Credit Suisse Sec. (USA), LLC, 12 A.3d 1128, 1131 (Del.
2010); Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund, II, L.P., 624 A.2d 1199,
1205 (Del. 1993).
36
McMillan v. Intercargo Corp., 768 A.2d 492, 500 (Del. Ch. 2000).
37
Jimenez v. Palacios, 2019 WL 3526479, at *8 (Del Ch. Aug. 2, 2019).
9
them . . . may present a petition to the Court of Chancery of the county wherein the
lands and tenements are situate . . . .” 38 Upon such a petition, this Court will initiate
a statutory process for the partition. 39 Unless partition in kind is impracticable, the
property shall be so partitioned. 40 The right to partition a tenancy in common is
grounded in the need for a “practical means . . . to break . . . unwholesome
stalemates” between owners.41 Partition rights have been a longstanding presence
in equity “since the time of Henry VIII.” 42 “It is well-established principle that the
right of partition between cotenants is an absolute right.” 43
Notwithstanding this “absolute” right, tenants in common are permitted to
waive the statutory right to partition through an agreement.44 To effectively waive,
the contract containing the waiver must first do so clearly. Additionally, the waiver
must be reasonable, meaning that “written agreements not to partition are sanctioned
if they are fair and equitable.” 45 In short, this means that “in order for an agreement
not to partition to be enforceable it must be in writing and for a reasonable period of
38
25 Del. C. § 721(a).
39
25 Del. C. § 721(b).
40
Id.
41
Libeau, 880 A.2d at 1056.
42
Kuck v. Cropper, 1978 WL 22465, at *3 (Del. Ch. Dec. 5, 1978).
43
Id. (emphasis omitted).
44
Libeau, 880 A.2d at 1056 (“As this court has previously noted, with a touch of irony, the
‘absolute right to partition, however, is subject to some limitations’ . . . the right may be waived
by contract.” (alterations omitted) (quoting Kuck, 1978 WL 22465, at *3)).
45
Kuck, 1978 WL 22465, at *3 (citation omitted).
10
time.” 46 The period of time will be deemed unreasonable if it is “unlimited in
duration.”47
Here, the parties concur that the Agreement waives the statutory right to
partition, both implicitly in §§ 4.01(c)–(h) by providing an exit mechanism and
explicitly in § 4.01(b). 48 Section 4.01(b) provides: “each of the parties hereby
waives any and all right which he may otherwise have by law or equity to seek a
partition of the Property by court action.”49 While the exit mechanism provided in
Sections 401(c)–(h) is not inequitable if agreed to for a limited time, I note that that
mechanism is not the equivalent of a partition right; a method of exit that gives a co-
tenant a shot at receiving the fair market value of an undivided interest is a far cry
from what the Petitioner here could achieve through partition—undivided ownership
of seventy acres of land. Further, as the Petitioner points out, and the Respondents
do not meaningfully contest, the Agreement as written is potentially perpetual; it
binds heirs and assigns, and does not end until the entire interest is either merged or
sold. Thus, if one co-tenant buys out the others, title merges, and the Agreement
terminates; if all co-tenants sell their interest to third parties, the Agreement
terminates. So long as the heirs of one co-tenant retain an interest, however, they
46
Id. (citation omitted).
47
Restatement (First) of Property § 406 (1944); McInerney v. Slights, 1988 WL 34528, at *6–*7
(Del. Ch. Apr. 13, 1988).
48
See Resp’ts’ Answering Br. in Opp’n to Pet’r’s Mot. for J. on the Pleadings 26 (“Resp’ts’
Answering Br.”), Dkt. 28; Pet’r’s Opening Br. 1.
49
Agreement, § 4.01(b).
11
have the right to enforce the agreement, potentially forever. As it stands, therefore,
the Agreement exerts an unreasonable restraint on alienation.
The Respondents contend that, notwithstanding my finding above, I should
withhold judgement on the pleadings because the Agreement is ambiguous. A
contract is ambiguous “when the provisions in controversy are reasonably or fairly
susceptible of different interpretations or may have two or more different
meanings.”50 If a contract is ambiguous, then the Court may go outside the contract
and review extrinsic evidence to determine the parties’ intent. 51
The Respondents suggest that such an inquiry into extrinsic evidence is
necessary here, and would yield, they posit, much useful information concerning the
signatories’ intent. But they are unable to point to pertinent ambiguity. They do
assert vagueness in the contractual sale process language, 52 but that ambiguity, if
such it is, is unrelated to the language within which I have determined that
unenforceability resides. The pertinent language, purporting to work a waiver of
50
United Rentals, Inc. v. RAM Holdings, Inc., 937 A.2d 810, 830 (Del. Ch. 2007) (quoting Rhone–
Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992)) (emphasis
added).
51
GMG Capital Invs., LLC v. Athenian Venture Partners I, L.P., 36 A.3d 776, 780 (Del. 2012)
(“Where a contract is ambiguous, ‘the interpreting court must look beyond the language of the
contract to ascertain the parties’ intentions.’” (quoting Eagle Indus., Inc. v. DeVilbiss Health Care,
Inc., 702 A.2d 1228, 1232 (Del. 1997))).
52
The Respondents argue that the Petitioner thinks the Agreement is ambiguous based on the
Petitioner’s statement that the sale mechanism is “confusing.” The fact that the exit mechanism
provided in § 4.01 may be difficult to follow, however, does not render the Agreement ambiguous
or susceptible to multiple interpretations, particularly regarding the provisions concerning the
duration of the Agreement that are at issue here.
12
partition binding on heirs of the signatories, is clear. The Respondents assert
vigorously that because they benefit from inferences at this pleading stage,
“questions about the Co-Ownership Agreement’s meaning must all be assumed in
Respondents’ favor.”53 True, but inapt. Where a contract’s plain meaning is clear,
the provisions of the contract themselves govern: “Contract terms themselves will
be controlling when they establish the parties’ common meaning so that a reasonable
person in the position of either party would have no expectations inconsistent with
the contract language.” 54
B. Reformation
The Respondents next argue that the Motion for Judgement on the Pleadings
should be denied and a record created to allow reformation of the Agreement. They
point to their family’s living arrangements, continued proximity to the Property, and
their continued farming of the land (facts contained in an affidavit submitted by one
of the Respondents) and argue that the Agreement “was never meant to last
indefinitely and was only meant to apply to the parties’ immediate family.” 55 Such
intent is found nowhere in the Agreement, and the Respondents seek reformation to
53
Resp’ts’ Answering Br. 15.
54
GMG Capital, 36 A.3d at 780 (quoting Eagle Indus., 702 A.2d at 1232).
55
Resp’ts’ Answering Br. 15–16; Resp’ts’ Answering Br., Ex. A, Aff. of Dr. Nicole Irish, at 2
(“Irish Aff.”).
13
reflect this “true” intent.56 The Respondents argue that the termination clause of the
Agreement should be reformed, to provide for termination after these parties, the
children of the signatories, have passed. Again, there is nothing in the language of
the Agreement itself that suggests an intent to limit the duration to two generations.
“[R]eformation . . . corrects an enforceable agreement’s written embodiment
to ‘reflect the parties’ true agreement.’” 57 Reformation, because it necessarily
contradicts the parties’ written agreement, must be applied with caution lest it
destroy the value of freedom of contract. 58 Therefore, the entitlement to a
reformation must be demonstrated by clear and convincing evidence of the terms of
the “true” unwritten agreement. 59 “[W]here parties have entered into a written
contract with knowledge of the express terms thereof, reformation will not be
granted unless it can be demonstrated that the party seeking such form of relief acted
under the influence of fraud or under a misapprehension resulting from mutual
56
I note that the Agreement has an Integration clause, which provides: “This Agreement is the
entire agreement between the parties with respect to the subject matter hereof . . . .” Agreement,
§ 7.04.
57
Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, 68 A.3d 665,
677 (Del. 2013) (quoting In re Schick, 232 B.R. 589, 598 (Bankr. S.D.N.Y. 1999)).
58
See Heartland Delaware Inc. v. Rehoboth Mall Ltd. P’ship, 57 A.3d 917, 925 (Del. Ch. 2012)
(“Equity respects the freedom to contract and equitable [r]eformation is appropriate only when the
contract does not represent the parties’ intent because of fraud, mutual mistake or, in exceptional
cases, a unilateral mistake coupled with the other parties’ knowing silence.”) (emphasis added).
59
E.g. James River-Pennington Inc. v. CRSS Capital, Inc, 1995 WL 106554, at *7 (Del. Ch. Mar.
6, 1995).
14
mistake.”60 The need for reformation, by Rule, must be pled with particularity.61
Here, the Respondents filed an Answer and Counterclaim to the Petition; that
pleading seeks, inter alia, a declaration that the Agreement is “lawful and binding
upon” the parties. 62 The pleading is silent as to the Respondents’ current contention
that the contract does not reflect the signatories’ intent, and the pleading does not
seek reformation. Extraneous to the pleadings, one Respondent, Dr. Irish, filed an
affidavit which vaguely states that the Agreement “was meant to remain in effect
only while family members owned an interest in the property.” 63 The record is
devoid of any specific pleading that the unexpressed intent of the signatories was to
limit the duration of the Agreement to two generations, to the signatories and their
children then living, or any similar limited period, let alone that the signatories had
orally agreed to place that intent in the contract, but had been stymied by mutual
mistake or fraud.
To the extent the Respondents are arguing that reformation is available simply
to insert language which could render the partition waiver enforceable here, I
disagree. The Respondents point to Libeau v. Fox,64 another case of a petitioner
seeking to avoid a waiver of partition via contract. The Libeau court found that the
60
Gracelawn Memorial Park, Inc. v. Eastern Memorial Consultants, Inc., 280 A.2d 745, 748 (Del.
Ch. 1971).
61
Del. Ct. Ch. R.9(b).
62
Resp’ts’ Countercl. ¶ 54.
63
Irish Aff. ¶15.
64
880 A.2d at 1056.
15
contract there, as written, created an impermissible restraint on alienation because it
failed to limit the duration of the partition waiver, but then reformed the agreement
at issue to prevent an unreasonable duration based on the intent of the parties.65 The
reformation in Libeau, I note, was created on a post-trial record, and the facts of the
case are readily distinguished from the matter before me. Libeau involved the desire
of the signatories to the contract to enjoy joint ownership of a beach house. One co-
tenant sought to void their agreement after she became dissatisfied with it. The
resulting trial involved those original signatories, and the court was able to determine
that they had no intent to bind anyone but themselves and their assigns during their
lifetimes. The failure to limit the duration of the restriction in Libeau was a foot-
fault, and the Court reformed to permit enforceability, based on the signatories’
intent, in a way that held the petitioner there to her bargain. Here, the requested
reformation comes from parties taking from a signatory by will; the original
signatories are dead. The reformation sought would conveniently limit the duration
to the current descendants, but would cut out the next generation. But the
Respondents have failed to plead specific facts that could support such a
reformation.
_______________
65
Id. at 1063–64.
16
It is not surprising that a farming family would attempt to restrain the partition
rights of family-member cotenants, to preserve the integrity of the farming operation
in light of the increasing economic pressure to develop farmland in eastern Sussex
County. It is impossible for this judge not to be sympathetic to such an intent. The
signatories, Willard Workman and Sandra Reynolds, had the ability to limit their
own rights, as co-tenants, to partition. They lacked the ability, however, to impose
their own waiver of partition rights upon their descendants, ad infinitum. Because
their attempt to do so imposes an improper restraint on alienation, their heirs may
not enforce the Agreement.
C. Rule Against Perpetuities
Having found the Agreement unambiguous and unreasonable in its restraint
on alienation, I do not address the parties’ arguments regarding the rule against
perpetuities.
III. CONCLUSION
The Petitioner’s Motion for Judgment on the Pleadings is GRANTED. The
Parties should submit an appropriate form of order.66
66
It seems to me unlikely that the Respondents could plead an action for reformation of the
Agreement consistent with Rule 9. I note, however, that Rule 15(aaa), precluding amendment
after a motion to dismiss is responded to, is not applicable to the Respondents’ response to the
Petitioners’ Motion for Judgement on the Pleadings. Nothing herein should be read to preclude
the Respondents from seeking leave to file an amended Response and Counterclaim, if appropriate.
A predicate for leave to be granted, however, would be sufficiency of the pleading in stating a
claim for reformation.
17